Document Type
Article
Publication Date
2025
Abstract
Sachs focuses on my claim that a theory of constitutional adjudication needs to make a moral argument that justifies telling judges why they ought to decide constitutional disputes in a particular way rather than in some other way. Why be an originalist, for example, rather than a common-law constitutionalist? In answering that question, a theory of constitutional adjudication cannot depend exclusively on a positivist, descriptive account of what the law is—even if Sachs correctly identifies originalism as the law— because knowing that originalism is the “law” (in a positivist sense of “law”) does not tell us why anyone ought to follow originalism in resolving constitutional disputes. We need a moral account of why judges should choose originalism over its rivals.
Recommended Citation
J. Joel Alicea, Originalism and Truth-Telling: A Reply to Stephen Sachs, 48 Harv. J.L. & Pub. Pol’y 361 (2025).
